人民银行行政处罚自由裁量权的去律控制

自由裁量权广泛存在于人民银行实施的行政处罚中,在实现行政灵活性和个体正义的同时,也对法治主义、金融稳定带来一定的负面效应,亟需规制。对于规制模式的选择,除了传统的立法、司法、行政等三权之间的相互制约外,实践中又出现了一种新的内部制约机制——行政处罚裁量基准。这种裁量基准在实施成本、实施效果等方面都呈现出优势,弥补了传统规制方式的不足。对于裁量基准法律效力的认定,需要分别看待：一方面,它具备内部法律效力;另一方面,在符合一定条件的前提下,它能够产生外部法律效力。

On Legal Control to Discretion of Administrative Punishment of People's Bank of China

Discretion of People＇s Bank is widespread in the field of administrative punishment, which not ordy has realized administrative flexibility and individual justice, but also has brought some negative effect to ruling country by law and financial stability. It is urgent to form related regulation. As to the pattern of regulations, in addition to the traditional legislative, judicial and administrative restriction, there appeared an internal restriction mechanism in practice discretion benchmark of administrative punishment. This kind of discretion benchmark has advantages in implementing cost and effect, which can make up for the deficiency of traditional regulation. We should view it separately： on one hand, it has a completely internal legal effectiveness; on the other hand, under certain condition, it can generate external legal effect.